On June 30, 2013, Gov. Scott Walker signed into law substantial changes to Wisconsin’s statutes governing the extraction and use of DNA information from people caught up in the criminal justice system.¹ These changes come in the wake of Maryland v. King,² a major decision by the U.S. Supreme Court holding that Maryland’s system of extracting and analyzing the DNA of persons arrested for and charged with, but not yet convicted of, certain serious felonies does not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The King decision clears the way for the collection of DNA upon arrest, at least for serious felonies. However, it does not dictate the result of challenges to all aspects of Wisconsin’s DNA-extraction regime. For example, the decision leaves open the possibility that DNA collection would not be permissible upon arrest for less serious offenses than the relatively narrow list of violent offenses that trigger DNA extraction under Maryland law. It also leaves unanswered central questions of Fourth Amendment doctrine, making it difficult to predict whether other aspects of Wisconsin’s DNA-extraction law are constitutionally vulnerable.

DNA Extraction, DNA “Fingerprinting,” and DNA Data Banks

Deoxyribonucleic acid (DNA) molecules – in the familiar double-helix structure discovered by James Watson and Francis Crick in 1953³ – contain the genetic instructions for all living things, including humans.⁴ Forensic use of DNA relies on several key facts. First, each person – except for a person who has an identical twin – has a unique sequence of chemical bases (see sidebar) along his or her DNA. Second, the person’s unique sequence does not change over time. Third, the sequence is the same in every tissue and fluid throughout the person’s body.⁵

To determine whether a suspect may have left bodily tissues or fluids at a crime scene, forensic scientists compare the DNA sequence from a sample taken from the suspect to the DNA sequence from the sample of tissues or fluids found at the crime scene.⁶ Crime laboratories do not determine the entire sequence of bases in the suspect’s DNA or the crime-scene DNA but look at limited portions of the sequence at various specified locations along the DNA molecules.⁷

Specifically, laboratories use short tandem repeat (STR) analysis, which looks at the number of repetitions of specific sequences of bases at 13 to 15 locations within noncoding regions of the genome.⁸ If the number of repetitions at all locations in the sample from the suspect is not the same as the number of repetitions at all locations in the crime-scene sample, the suspect is excluded as the source of the tissue or fluid at the crime scene.⁹ If the number of repetitions from the suspect sample is the same as the number from the crime scene sample at all the locations, the likelihood that such a match could have occurred by chance can be calculated.¹⁰

In general, because the variability within the population in the number of repeats at these locations is sufficiently high, the likelihood of a match occurring randomly is extremely low, and thus the probability that the sample from the crime scene came from the suspect is extremely high.¹¹ It currently takes several days to several months from the time of extraction until the DNA analysis is complete,¹² although in a few years “rapid DNA analysis” might provide a profile within one to two hours of taking a sample.¹³

Much forensic DNA work involves taking a sample from a known suspect to compare to a crime-scene sample. In this scenario, the authorities generally have probable cause to believe the suspect has committed the crime under investigation and thus may obtain a warrant to extract the sample.

DNA data banks operate on a different basis. Biological samples are taken from people not because they are suspected of having committed a crime in which their DNA will link them to the crime scene but simply because they have been convicted of or, increasingly, arrested for, a crime, even if the DNA evidence will not be useful for prosecuting that crime. The samples are extracted – generally by swabbing the inside of the person’s cheek with a large cotton swab – involuntarily and without a warrant or even any suspicion that the DNA will produce evidence that the person was involved in a crime.

The DNA is then analyzed as described above and the resulting profile of STR repeats is entered into a statewide data bank. The profile is also entered into the FBI’s Combined DNA Index System (CODIS) so that law enforcement authorities around the country can compare DNA profiles from unsolved crimes in their jurisdictions to the nearly 11 million profiles currently in CODIS from arrestees and people convicted of crimes.¹⁴ If the comparison produces a match – also known as a cold hit – the authorities can obtain the identity of the person whose DNA matched the crime scene DNA. This match often supplies probable cause to obtain a warrant to extract another biological sample from the newly identified suspect and then to initiate prosecution.

Although forensic DNA analysis can produce accurate and legally powerful results, it does have limits. Obviously, if there is no DNA available from the crime scene that could be from a perpetrator, DNA analysis can play no role in solving and prosecuting that crime. Crime scenes without DNA evidence are common, because 1) “[c]asual contact does not generally transfer enough DNA for analysis,” 2) “DNA can be removed by washing,” and 3) “environmental factors such as mold, heat, humidity, bacteria and sunlight can destroy DNA very quickly.”¹⁵ Further, STR testing “is very susceptible to contamination” from other sources of DNA.¹⁶

Wisconsin DNA-Extraction Law in Flux

Until passage of the new law in 2013, Wisconsin law allowed the warrantless extraction of DNA only from persons convicted of any felony, of one or more of a limited number of misdemeanors, or of corresponding juvenile offenses; persons found not guilty by reason of mental disease or defect of certain crimes; and persons found to be sexually violent.¹⁷ Police officers could extract that specimen either by a pin prick of the fingertip to obtain a blood sample or by an oral swab to obtain a saliva sample.¹⁸ Once the state crime lab analyzed the sample in the manner described above, the lab generated a DNA profile that it included in the state’s DNA data bank and shared with the federal government’s CODIS data bank.¹⁹ Unlike other states, Wisconsin required that the crime lab destroy the biological sample after generating and storing the profile.²⁰

The budget bill (2013 Wis. Act 20) Gov. Walker signed on June 30, 2013, significantly changed state law regarding the collection of DNA evidence for law enforcement purposes. Law enforcement officers now must take biological specimens for DNA from persons merely arrested for felonies (or juvenile offenses that would be felonies if committed by an adult) at the time of arrest or booking.²¹ The Wisconsin Department of Justice (DOJ) estimated that approximately 25,000 people per year are arrested for, but not ultimately convicted of, a felony.²²

Arresting law enforcement agencies may send the sample to the state crime laboratory for analysis only if the arrest was made pursuant to a warrant, after a court has made a finding of probable cause that the defendant has committed a felony, or if the defendant fails to appear at or waives the initial court appearance or preliminary examination.²³ Act 20 also prohibits any entity or person other than the state crime lab from analyzing the samples or using the samples for any purpose not authorized by law.²⁴

The new law also requires extraction and analysis of the DNA of any person found guilty of a misdemeanor.²⁵ The DOJ estimates this will result in the extraction and analysis of an additional 40,000 samples annually.²⁶

The new law repeals the requirement that the state crime lab destroy the sample after analysis is complete.²⁷ The law purports to prevent legal consequences that might arise from “erroneous entry” of a profile in the data bank, stating that such an error “does not prohibit the legitimate use of the entry to further a criminal investigation or prosecution” and “is not grounds for challenging the validity of the data collection, for challenging the use of the sample … or for the suppression of evidence based upon or derived from any entry in the data bank.”²⁸

The Fourth Amendment Challenge to DNA Extraction and Analysis on Arrest: The Issues Raised by Maryland v. King

The defendant in Maryland v. King, Alonzo King, was arrested and charged in 2009 with first-degree assault.²⁹ The state analyzed a DNA sample from inside King’s cheek obtained pursuant to Maryland’s DNA Collection Act, which allowed collection of DNA from people arrested for and charged with specified serious felonies.³⁰ The profile was loaded into the state DNA data bank and the federal CODIS data bank. King’s profile was compared to DNA profiles from samples obtained from unsolved crimes. This comparison produced a match with the profile of a sample recovered in the investigation of a previously unsolved rape that occurred in 2003.

Based on the match, King was charged with the rape. In the rape prosecution, he moved to suppress the evidence derived from the DNA sample taken at the time he was charged with the assault in 2009, on grounds the warrantless and suspicionless extraction of his DNA violated the Fourth Amendment. The suppression motion was denied, and King was convicted of the rape.

The Fourth Amendment provides as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”³¹

Is DNA Extraction and Analysis for Inclusion in a DNA Data Bank a “Search”?

Generally, in analyzing whether a particular governmental action violates the Fourth Amendment, a court first considers whether the challenged intrusion constitutes a search or seizure within the meaning of the Fourth Amendment. At a minimum, a nonconsensual physical intrusion into a person’s body or property for the purpose of obtaining information falls within the Fourth Amendment’s definition of a search.³² The government in King conceded that a Fourth Amendment search took place.

However, while a physical intrusion for purposes of obtaining information is sufficient to establish that a Fourth Amendment search has occurred, it is not necessary. In some circumstances, a search is considered to have occurred even if there is no physical intrusion (such as when a telephone line outside a person’s home is tapped by the government), because the government has invaded the target’s “reasonable expectation of privacy.”³³ At oral argument in King, Chief Justice John Roberts repeatedly questioned whether a person could have a reasonable expectation of privacy in his or her DNA when the police could take a sample of saliva from a drinking cup used by the suspect.³⁴ The Chief Justice’s questions suggested that, even if the use of a swab to take a sample from King’s body was a search (because it involved a physical intrusion), analyzing a sample obtained from bodily tissues or fluids a suspect “abandoned” on an object with which his body came into contact might not be a search.

Is DNA Extraction and Analysis upon Arrest “Unreasonable”?

The parties in King vigorously disputed the proper analysis for determining whether the suspicionless, warrantless extraction of DNA from a person charged with, but not yet convicted of, a felony is an “unreasonable” search under the Fourth Amendment. King argued that probable cause and a warrant are necessary unless the search falls within one of the warrant requirement’s limited exceptions, such as the “special-needs” exception. Only then would the Court be permitted to consider whether the governmental interest (here in identifying persons in custody and solving cold cases) outweighs the individual’s privacy interests (here, the interests in bodily integrity and keeping genetic information out of the hands of the government).

The government, in contrast, argued that the Court need not search out an exception to the warrant-and-probable-cause requirement but should simply determine whether warrantless, suspicionless extraction and analysis of DNA from felony arrestees is reasonable by balancing the governmental interests against individual privacy interests.

The parties’ dispute reflects an unresolved tension in Fourth Amendment doctrine.³⁵ The Supreme Court sometimes treats a warrant and probable cause as a prescriptive requirement, with limited exceptions justified by unusual circumstances or governmental needs.³⁶ In other cases, the Court treats the presumption favoring a warrant and probable cause as merely descriptive of the outcome of the more fundamental balancing of interests that is at the core of the reasonableness inquiry.³⁷

The doctrinal dispute notwithstanding, the briefing and oral argument in King focused heavily on whether DNA extraction and analysis, as currently performed, actually serves a governmental interest in identifying persons in custody. If it does serve an identification function, it may be classified as a “special need … divorced from the State’s general interest in law enforcement.”³⁸

If the challenged intrusion falls within this special-needs exception, the presumption of a warrant and probable cause is replaced by a “balancing test that weigh[s] the intrusion on the individual’s interest in privacy against the ‘special needs’ that support[] the program.”³⁹ The interest in solving cold cases appears indistinguishable from the general law enforcement interest in catching criminals, so it likely cannot qualify as a special need.

However, positively identifying a person in custody, including whether that person has any prior criminal record, has purposes at least arguably distinct from the basic law enforcement interest in catching criminals. Such basic identification ensures that the jails and courts know who they have in custody and are subjecting to prosecution and allows the courts to determine whether and under what conditions to release the person pending disposition of the case for which he or she was arrested.

King argued that identification is not in fact the purpose of DNA data banks as they function today. He noted that fingerprints and mug shots produce, within only a few minutes, positive identifications for any person previously arrested,⁴⁰ so DNA analysis, which takes at least a few days, is almost always superfluous. More significantly, DNA from arrestees is currently only compared to crime-scene profiles for which the offender is unknown, not to the profiles of known offenders and prior arrestees. Thus, the comparison does not in fact identify the person in custody; it only links him or her to an unsolved crime. The government’s principal response was that within two years, rapid DNA will allow the authorities to get results within a few hours.

The King Decision and Ramifications for Changes to Wisconsin Law

On June 3, 2013, in a 5-4 decision, the U.S. Supreme Court upheld Maryland’s law providing for extraction and analysis of DNA from persons charged with serious felonies. The Court’s majority opinion, authored by Justice Kennedy, began by recognizing that taking a swab of an individual’s cheek constitutes a search within the meaning of the Fourth Amendment.⁴² However, the Court reasoned that, at least within certain categories of cases in which intrusions are minimal, expectations of privacy are low, law enforcement discretion is constrained, and the government’s interests are not solely related to the general law enforcement interest in solving crimes, a warrant and individualized suspicion are not necessary for a search to be reasonable within the meaning of the Fourth Amendment.⁴³

The Court identified the governmental interests served by DNA analysis as the following: 1) the need to know “who has been arrested and who is being tried,” including the arrestee’s criminal history;⁴⁴ 2) protecting other detainees already in jail from potentially dangerous new arrestees;⁴⁵ 3) knowing whether an arrestee is likely to abscond if released pretrial because of other existing or possible charges;⁴⁶ 4) knowing whether an arrestee would pose a risk to the public if released pretrial, based on past criminal acts;⁴⁷ and 5) the possibility that a wrongfully charged or convicted defendant in another case could be cleared by a match to the arrestee.⁴⁸

Turning to arrestees’ privacy interests, the Court noted that detainees taken into police custody necessarily have reduced expectations of privacy, because jail officials will subject them to extensive searches, including strip searches and inspections of body cavities, to ensure that they do not bring weapons or contraband into the jail.⁴⁹ And because the forensic analysis of STRs in noncoding regions of DNA does not reveal any genetic traits or other medically relevant information, it does not “intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional.”⁵⁰

Weighing these competing interests, the Court concluded, “In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”⁵¹

Unfortunately, the Court did not clarify the doctrinal question of whether the Fourth Amendment creates a presumptive warrant-and-probable-cause requirement, with limited categorical exceptions in which a balancing test is appropriate to determine whether a warrantless search is reasonable; or whether the oft-stated preference for a warrant and probable cause is simply a description of the usual result of such balancing.

On one hand, the Court reiterated that “the ultimate measure of the constitutionality of a governmental search is ‘reasonableness,’” and stated, “[i]n giving content to the inquiry whether an intrusion is reasonable, the Court has preferred ‘some quantum of individualized suspicion … [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.’”⁵² This appears to endorse a direct balancing test in all cases.

However, the Court also suggested that its balancing approach is appropriate only because the case “falls within the category of cases this Court has analyzed by reference to the proposition that the ‘touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.’”⁵³ The Court expressly disclaimed reliance on the special-needs categorical exception to the warrant-and-probable-cause requirement but compared this case to the special-needs cases in justifying its balancing test for arrestees who “may require detention before trial,” because such persons have dramatically reduced expectations of privacy.⁵⁴ Thus, one could read the decision to create a new categorical exception to the warrant-and-probable-cause requirement for people arrested for serious offenses likely to result in pretrial detention, to endorse open-ended balancing of interests, or neither.

In a typically derisive dissent, Justice Scalia pointed out that Maryland’s database and CODIS are not in fact currently used to “identify” arrestees, at least not as a “minimally competent speaker of English” would use the term “identify.”⁵⁵ Rather, by comparing the sample from an arrestee to unsolved crime-scene profiles, law enforcement officers identify the earlier crime’s unknown perpetrator, not the arrestee, whose identity is already known through fingerprinting or other means.⁵⁶ Identifying the unknown perpetrator of a crime, of course, is the quintessential “general interest [of] law enforcement.” The majority opinion did not respond to this aspect of the dissent, but perhaps some Justices who appeared troubled by these facts at oral argument joined the majority because they perceived that DNA analysis will soon become fast enough to serve a true identification function, as fingerprints and mug shots already do today.

Although the proposal to expand DNA collection in Wisconsin differs somewhat from Maryland’s scheme, the King decision likely clears the way for most of the changes made in the budget. One possible exception is the bill’s authorization to extract DNA upon arrest for felonies that would not be considered serious under the Maryland law. The King Court repeatedly emphasized that its analysis applied only to extraction of DNA from those charged with “serious offenses.”⁵⁷

Under Maryland Code Public Safety section 2-504(a)(3), authorities may only extract DNA from persons charged with “a crime of violence or an attempt to commit a crime of violence; or … burglary or an attempt to commit burglary.”⁵⁸ Under Act 20, in contrast, a second arrest for simple possession of marijuana, which is a felony,⁵⁹ would authorize collection of the arrestee’s DNA.⁶⁰ A person arrested for such an offense might reasonably argue that it is not sufficiently serious to warrant the intrusion occasioned by DNA extraction and analysis.

As Justice Scalia’s dissent noted, however, the identification rationale on which the Court majority relied applies equally to persons arrested and booked on less serious charges.⁶¹ Still, a key factor in the Court’s analysis appeared to be its presumption that people arrested on suspicion of having committed serious felonies would likely be held in custody for some time pretrial, making their history and background more important for ensuring jail security and reducing their expectations of privacy, because jails afford almost no privacy. Such considerations are not present, or not present to the same degree, when a person is arrested on a charge for which he or she can be expected to be quickly released.

King does not determine the fate of other aspects of Wisconsin’s expansion of DNA-extraction law. King did not expressly deal with taking samples from people convicted of misdemeanors, although it is difficult to see how extraction from convicted misdemeanants would present greater Fourth Amendment concerns than extraction from unconvicted arrestees. The King opinion did not expressly address whether retaining biological samples after profiles are generated is permissible, although Maryland does retain its samples and this seemed not to trouble the majority because of Maryland’s prohibitions on use for purposes other than identification.

Nor did the opinion touch on whether the erroneous entry of a person’s sample in a data bank should result in exclusion of evidence derived from that error, a question about the applicability of the exclusionary rule that is likely within the judicial, not the legislative, purview. The decision also says nothing about Wisconsin’s practice of extracting DNA from persons previously convicted of crimes who have completed their sentences and whose expectations of privacy are thereby presumably restored.⁶²

Conclusion

The U.S. Supreme Court’s decision in King probably eliminates federal constitutional obstacles to expansion of the warrantless, suspicionless collection of DNA to situations involving people arrested for serious felonies. However, in areas left open by the decision, familiar public policy considerations will remain paramount: to what extent does society’s compelling interest in catching and punishing criminals justify police intrusions on the bodily integrity and genetic privacy of persons not yet convicted of a crime?

Proponents of broader collection of DNA note that matching DNA from crime scenes of unsolved cases to profiles in DNA data banks has helped solve cold cases and thereby likely prevented further crimes by putting or keeping criminals behind bars before they can offend again.⁶³ They also note the potential of DNA data banks to more quickly clear innocent suspects and exonerate the wrongfully accused or convicted. They view the physical intrusion of swabbing the inside of the mouth as a minor inconvenience that should not deprive law enforcement officers – and the people they protect – of this powerful tool.

Opponents do not dispute the power and accuracy of DNA evidence in solving criminal cases and exonerating the innocent. However, they note that, unlike photographs, fingerprints, or other traditional means of identifying a person in custody, DNA has the potential to reveal huge amounts of the most private information about a suspect and thus is uniquely intrusive and subject to abuse, particularly if the biological samples are retained indefinitely.⁶⁴

They also note that adding profiles of arrestees to data banks has not significantly increased the rate of matches to crime-scene data, largely because the vast majority of arrestees – who are arrested for drug, property, and other nonviolent crimes – do not commit the kinds of crimes for which DNA evidence is found or collected at the crime scene.⁶⁵ Finally, they insist that the privacy protected by the Fourth Amendment is so fundamental to Americans’ liberty that some crimes may need to remain unsolved, rather than risk intruding on the rights of individuals who, though arrested, are presumed innocent until conviction. In the words of Justice Scalia, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”⁶⁶

Endnotes

¹ See 2013 Wis. Act 20, §§ 1905 & ff.

² Maryland v. King, 133 S. Ct. 1958 (2013).

³ Kristine Barlow-Stewart, The Human Genetic Code – the Human Genome Project and Beyond (Fact Sheet 24) (Centre for Genetics Education, June 2012), available at www.genetics.edu.au.

⁴ See National Institutes of Health, National Human Genome Research Institute, Talking Glossary of Genetic Terms, entry for “DNA” (www.genome.gov/glossary) (last visited May 16, 2013).

⁵ Wisconsin Dep’t of Justice, Crime Laboratory Bureau, Physical Evidence Handbook 57-58 (8th ed. 2009), available at https://wilenet.org/html/crime-lab/physevbook/index.html (last visited May 17, 2013); see also DNA Analysis Unit, https://wilenet.org/html/crime-lab/analysis/dna-analysis.html (last visited May 16, 2013).

⁶ Glossary of Genetic Terms, supra note 4, entry for “DNA Fingerprinting”; DNA Analysis Unit, supra note 5.

⁷ The statutes authorizing DNA collection and analysis typically do not prohibit complete sequencing of genomes from the samples or specify which segments of the genome will be sequenced for forensic analysis. See Wis. Stat. § 165.77(3) (“[T]he laboratories shall analyze the deoxyribonucleic acid in the specimen. The laboratories shall maintain a data bank based on the data obtained from deoxyribonucleic acid analysis of those specimens. The laboratories may compare the data obtained from one specimen with the data obtained from other specimens.”); 42 U.S.C. § 14135a(c)(2) (defining DNA analysis as “analysis of the deoxyribonucleic acid (DNA) identification information in a bodily sample”).

⁸ Physical Evidence Handbook, supra note 5, at 59 (Wisconsin crime labs “analyze fifteen different areas of DNA” using STR analysis); Federal Bureau of Investigation, Codis & NDIS Fact Sheet, questions & answers regarding DNA Data Requirements (“The DNA data must meet minimum CODIS Core Loci requirements for the specimen category…. Generally, the 13 CODIS Core Loci are required for submission of convicted offender, arrestee, detainee, and legal profiles.”), available at www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet (last visited May 17, 2013).

⁹ DNA Analysis Unit, supra note 5 (“An ‘exclusion’ means that the evidence has a DNA profile which is different from the DNA profile of the person in question. This in turn means that the person cannot be the source of the DNA and by extension is not the source of the evidence material.”).

¹⁰ Id. (“An ‘inclusion’ means that the genetic profile from the biological evidence and the genetic profile of the standard sample from an individual are the same. If the genetic profile is sufficiently rare in the population, this can mean that the source of the biological evidence can be attributed to that one individual alone to a reasonable degree of scientific certainty. … In other words, if a person is taken at random from the population what is the probability that he or she will have the same DNA profile as that found in the evidence? The smaller the group of people included as possible sources of the evidence DNA, the lower the probability of a random match.”).

¹¹ See Henry T. Greely, Daniel P. Riordan, Nanibaa’ A. Garrison & Joanna L. Mountain, Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin, 34 J. L. Med. & Ethics 248, 250 (2006); Candice Roman-Santos, Concerns Associated with Expanding DNA Databases, 2 Hastings Sci. & Tech. L.J. 267, 269-70 (2010).

¹² See Maryland v. King, S. Ct. Oral Arg. Tr. at 4-5 (Feb. 26, 2013) (although it took five months to obtain results in this case, Maryland now gets results in 11-17 days); Physical Evidence Handbook, supra note 5, at 59 (“DNA analysis cannot be performed in a few hours or overnight.”).

¹³ Codis & NDIS Fact Sheet, supra note 8, questions and answers about “Rapid DNA or Rapid DNA Analysis.”

¹⁴ Federal Bureau of Investigation, CODIS Brochure (June 2012), available at www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure (last visited June 5, 2013).

¹⁵ Physical Evidence Handbook, supra note 5, at 59.

¹⁶ Id.

¹⁷ Wis. Stat. § 165.76.

¹⁸ Wis. Admin. Code § Jus 9.04(3)(a).

¹⁹ Wisconsin Dep’t of Justice, Crime Laboratory, DNA Databank, available at https://wilenet.org/hatml/crime-lab/analysis/dna-databank.html (last visited May 16, 2013).

²⁰ Wis. Stat. § 165.77(3) (“The laboratories shall destroy specimens obtained under this subsection after analysis has been completed and the applicable court proceedings have concluded.”).

²¹ 2013 Wis. Act 20, § 1937 (creating Wis. Stat. § 165.84(7)). The original budget proposal would also have required collection of samples from persons arrested for specified misdemeanors, including sexual and prostitution-related offenses and endangering safety by use of a dangerous weapon. See 2013 AB 40, § 1937 (Wis. Stat. § 165.84(7)(a)).

²² Legis. Fiscal Bureau, Budget Paper # 410, DNA Collection at Arrest and the DNA Analysis Surcharge 10, 14 (May 23, 2013).

²³ 2013 Wis. Act 20, § 1937 (creating Wis. Stat. § 165.84(7)(am)).

²⁴ 2013 Wis. Act 20, § 1937 (creating Wis. Stat. § 165.84(7)(c)). The original bill contained no such limitations. See 2013 AB 40, § 1937. By making the state crime laboratory the exclusive agency for analyzing DNA samples, the final version of the law reduces emerging concerns about unregulated local DNA databases. See Joseph Goldstein, Police Agencies Are Assembling Records of DNA, New York Times, page A1 (June 13, 2013).

²⁵ 2013 Wis. Act 20, § 1907 (creating Wis. Stat. § 165.76(1)(as)).

²⁶ Legis. Fiscal Bureau, supra note 22, at 10.

²⁷ 2013 Wis. Act 20, § 1931 (amending Wis. Stat. § 165.77(3)).

²⁸ Id. § 1935 (creating Wis. Stat. § 165.77(7m)).

²⁹ The facts of the King case are drawn from the Petitioner’s Brief at 4-5, Respondent’s Brief at 2, and the Supreme Court’s opinion, 133 S. Ct. at 1965-66.

³⁰ Md. Code Ann., Pub. Safety § 2-501 et seq.

³¹ U.S. Const., amend. IV.

³² See United States v. Jones, 132 S. Ct. 945, 950 n.3 (2012) (“Where … the government obtains information by physically intruding on a constitutionally protected area, [a ‘search’ within the original meaning of the Fourth Amendment] has undoubtedly occurred.”); Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (describing “compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation” as a Fourth Amendment search).

³³ Katz v. United States, 389 U.S. 347, 360 (1967).

³⁴ Oral Arg. Tr. at 31, 55.

³⁵ See California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring) (“our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone”). The Seventh Circuit imposes a categorical warrant requirement, unless the search falls within a recognized exception. Green v. Berge, 354 F.3d 675, 677-78 (2004) (upholding statute requiring felons currently in prison to provide DNA sample). The other circuits are split. See United States v. Mitchell, 652 F.3d 387, 402-03 & n.15 (3d Cir. 2011) (collecting cases).

³⁶ See, e.g., McNeely, 133 S. Ct. at 1558 (“Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception.”); Arizona v. Gant, 556 U.S. 332, 338 (2009) (plurality) (describing “the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.”).

³⁷ See Samson v. California, 547 U.S. 843, 848 (2006) (“‘[U]nder our general Fourth Amendment approach’ we ‘examin[e] the totality of the circumstances’ to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”) (citations omitted); id. at 852 n.3 (“Nor do we address whether California’s parole search condition is justified as a special need…, because our holding under general Fourth Amendment principles renders such an examination unnecessary.”).

³⁸ Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001).

³⁹ Id. at 78.

⁴⁰ Neither fingerprinting nor DNA analysis will confirm the identity of a person who has never before been arrested, because such a person will have no fingerprints or DNA on record.

⁴¹ Oral Arg. Tr. at 59-61.

⁴² King, 133 S. Ct. at 1968-69.

⁴³ Id. at 1969.

⁴⁴ Id. at 1971.

⁴⁵ Id. at 1972.

⁴⁶ Id. at 1972-73.

⁴⁷ Id. at 1973-74.

⁴⁸ Id. at 1974.

⁴⁹ Id. at 1978.

⁵⁰ Id. at 1979.

⁵¹ Id. at 1980.

⁵² Id. at 1969.

⁵³ Id. at 1970 (emphasis added); see also id. at 1969 (“In some circumstances, such as ‘[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions or the like, the Court has found that certain general, or individual circumstances may render a warrantless search or seizure reasonable.’”).

⁵⁴ Id. at 1978.

⁵⁵ Id. at 1985 (Scalia, J., dissenting).

⁵⁶ Id.

⁵⁷ Id. at 1965, 1970, 1973, 1974, 1977, 1978, 1980.

⁵⁸ “Crime of violence” includes abduction, first-degree arson, kidnapping, voluntary manslaughter, maiming, murder, rape, robbery, carjacking, first- and second-degree sexual assault, use of a handgun in the commission of a felony or crime of violence, first-degree child abuse, sexual abuse of a minor, first-degree assault or assault with intent to murder, rape, rob or commit a sexual offense. Md. Code, Crim. Law § 14-101(a).

⁵⁹ Wis. Stat. § 961.41(3g)(e).

⁶⁰ 2013 Wis. Act 20, § 1937 (creating Wis. Stat. § 165.84(7)).

⁶¹ King, 133 S. Ct. at 1989 (Scalia, J., dissenting).

⁶² See Wis. Stat. § 165.76(1) (authorizing DNA collection for person who “is or was” convicted or imprisoned for specified crimes), (2m)(h) (specifying method of collection for persons not currently in custody or on supervision).

⁶³ See J.B. Van Hollen, DNA at Arrest (Jan. 10, 2013), available atwww.doj.state.wi.us/media-center/2013-ag-columns/dna-arrest-0.

⁶⁴ See Maryland v. King, Brief of Amici Curiae American Civil Liberties Union, et al., at 12-15.

⁶⁵ Id. at 21-26.

⁶⁶ King, 133 S. Ct. 1989 (Scalia, J., dissenting).

⁶⁷ See National Institutes of Health, National Human Genome Research Institute, Talking Glossary of Genetic Terms, entry for “Chromosome” (www.genome.gov/glossary) (last visited May 16, 2013). Some DNA resides in the mitochondria of the cells, but this mitochondrial DNA is not used in the analysis described in this article.

⁶⁸ Id., entry for “Genome.”

⁶⁹ Id., entry for “DNA.”

⁷⁰ Id., entry for “Gene.”

⁷¹ Id., entry for “Non-Coding DNA.”

⁷² Id.